Section 377 of the Indian Penal Code, introduced by the British in the 1860s, outlawed ‘carnal intercourse against the order of nature’. For the next 150 years, gay sex was illegal in India, until the Delhi High Court ruled in July 2009 that the law did not apply to consenting adults. ‘It cannot be forgotten,’ the judges said, ‘that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.’ The decision made India the second South Asian country, after Nepal, in which gay people could no longer be prosecuted for their sexuality. The government, having once defended 377, reluctantly adjusted itself to the new reality. There was still a long way to go before homosexuality was socially acceptable, but at least homophobia was no longer legally enforceable. But the exultant mood was soon punctured by a rabble of religious leaders who, in a rare instance of interfaith harmony, forged a coalition to challenge the Delhi High Court’s decision in the Supreme Court, which overturned it earlier this month.

The judgment came as a shock. The appellants’ rights had not been breached by the Delhi High Court’s decision. They were reactionaries seeking to recriminalise a persecuted minority. Many of them cast homosexuality as a western import, even though 600 years before the British imposed Section 377 – itself an indicator of the prevalence of the ‘unnatural’ conduct it criminalised – Indians had carved explicit depictions of gay sex on the walls of the Sun Temple at Konark.

The Supreme Court’s hundred-page judgment takes none of this into account. Instead, their lordships observe that ‘the orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse’. This retrograde statement is plucked from a provincial high court’s decision nearly fifty years ago. The denunciation of oral sex is followed by a rebuke of the Delhi High Court for relying on the judgments of other jurisdictions in order ‘to protect the so-called rights of LGBT persons’.

But the principal reason for granting the appeal is not the apparent homophobia of the presiding justices. It is, they say, because Section 377 does not, per se, transgress the personal liberties enshrined in the constitution, as it does not empower the state to hound people arbitrarily. This reasoning, defending the theoretical essence of the law, overlooks its practical consequences; it prises 377 from the conditions it gives rise to.

What of those who have been hounded by the state? The Supreme Court thinks they are far too few – ‘less than 200 persons have been prosecuted’ – to necessitate the junking of 377. They didn’t say how many prosecutions would be enough to prompt a reconsideration. After granting the appeal, the Supreme Court passed the buck to Parliament. But MPs are unlikely to pass legislation that appears to sanctify ‘deviant’ conduct a few months before a general election. This explains why the government, instead of calling for a vote in Parliament, chose to file a review petition challenging the Supreme Court’s judgment. And there’s little reason to believe the court will change its mind.

The 2009 judgment freed gay people to live more relaxed lives, but also to mobilise as a community and do the kind of work that would eventually make homosexuality seem ordinary to even the most hidebound Indians. More immediately, it boosted the effort to inhibit the spread of HIV. It made life better, and it probably saved lives. All that will stop now. India’s gay community must start over, and endure once again the statutory bigotry they had thought was behind them.

Comments on “Section 377”

“This 66-page report describes how laws in over three dozen countries, from India to Uganda and from Nigeria to Papua New Guinea, derive from a single law on homosexual conduct that British colonial rulers imposed on India in 1860. This year, the High Court in Delhi ended hearings in a years-long case seeking to decriminalize homosexual conduct there. A ruling in the landmark case is expected soon.”

“There was still a long way to go before homosexuality was socially acceptable… But MPs are unlikely to pass legislation that appears to sanctify ‘deviant’ conduct a few months before a general election. This explains why the government, instead of calling for a vote in Parliament, chose to file a review petition challenging the Supreme Court’s judgment.”

This is not quite true. What has surprised even many progressives in India is the sheer speed with which the judgment was condemned. The Congress – the largest party and at present the ruling party – immediately issued a series of statements against the judgment, including by the party’s top leaders. Several other parties (naturally the Left,but others as well) joined in. The right-wing BJP has opposed but in a very muted fashion, as has one other party (the SP), also in a muted fashion; every other party (out of the 30 or 40 major parteis in India) is either silent or has supported challenging the judgment. This is in contrast to the situation in many ostensibly more ‘liberal’ countries where there is significant and vocal political opposition to gay rights. The government chose the court route simply because the Parliamentary route is longer and slower, and there is only one real session left before elections. I would also not be quite so cynical about the prospects of an overturn on review – the government has asked that the review petition be heard by a larger (Constitutional) bench, and the current judgment is ludicrously poorly written and full of gaping legal holes; chances of overturn cannot be dismissed.

I’m not sure that ‘carnal intercourse against the order of nature’ in the Indian Penal Code necessarily referred to homosexuality. As I understand it, homosexual relations in themselves were not banned in Britain until the 1880s. Buggery, however – either between men and men or men and women – was illegal, as was bestiality. This may be a common misunderstanding on the part of those who want to attribute homophobia in the ex-colonies to British imperial rule. The situation was more complicated than that. See Ronald Hyam’s ‘Empire and Sexuality’.